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[2024] ZANCHC 51
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S.H.D.P v P.S and Others (388/2024) [2024] ZANCHC 51 (24 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
Number:
388/2024
Heard: 22/03/2024
Delivered on: 24/05/2024
In
the matter between:
S[...]
H[...] D[...] P[...]
Applicant
and
P[...]
S[...]
First Respondent
JEBEKO
FARMING
CC
Second Respondent
BECKER
BERGH & MORE
INC
Third Respondent
Coram
:
Tyuthuza AJ
JUDGMENT
Per
Tyuthuza AJ
INTRODUCTION
1.
This is a contempt of
court application against the respondents for failing to comply with
my interim order granted on 23 February
2024 under the above case
number. In the alternative, t
he
applicant seeks an order that the interdict granted on 23 February
2024 be put into immediate effect pending any appeal proceedings
in
respect of the said order.
2.
On 23 February 2024,
the applicant approached the Court on an urgent basis, wherein I
granted the following order:
“
1.
The Applicant’s non-compliance with the Uniform Rules of Court
regarding time limits and service
be and is hereby condoned and the
application is heard as one of urgency in terms of Rule 6(12) of the
Uniform Rules of Court.
2.
Pending finalisation of the divorce action between the Applicant and
the First Respondent, under case
no: GC11/2023 instituted in
the Gariep Circuit Local Division, the First and Second Respondents
are:
2.1
interdicted and restrained from utilizing an amount equal to
50% of the nett proceeds of the sale of the immovable property,
namely
the farm Jebeko, no. 375, situate in the Dawid Kruiper Local
Municipality, Gordonia district, Northern Cape Province, which was
held under Title Deed No. T[...] (“
Jebeko
”);
and
2.2
directed to forthwith pay, or cause to be paid, 50% of the
nett proceeds of the sale of Jebeko into the trust account of Cluver
Markotter Inc., alternatively CJ Willemse & Babinszky Attorneys.
3.
In the event that the First and/or Second Respondent having
already utilized any part of the nett proceeds of the said sale,
he/it
be ordered to forthwith pay 50% of the amount so utilized into
the trust account of Cluver Markotter Inc; alternatively CJ Willemse
& Babinszky Attorneys, where it shall remain together with the
amount referred to in paragraph 2.2 above pending the finalization
of
the above mentioned action.
4.
The Third Respondent is directed to account to the Applicant’s
attorneys, Cluver Markotter Inc; within 3 days from date of
service
of this order , by providing them with:
4.1
The final statement of account in respect of the sale and
transfer of Jebeko;
4.2
All documents confirming any payments made in terms of the
final statement of account; and
4.3
Full details of any part of the nett proceeds of the said
transaction remaining in any trust banking account of the Third
Respondent.
5.
The First Respondent, together with and separate from any other
party electing to oppose this application, the one paying the other
to be absolved pro tanto, are hereby ordered to pay the costs of this
application.
”
3.
The first and second respondents opposed the
grant of the interim interdict on 23 February 2024.
BACKGROUND
TO THE MAIN APPLICATION
4.
The applicant, S[...] H[...] D[...] P[...] and
the first respondent, P[...] S[...], were married in community of
property on 2 November
2011. They have since separated.
The first respondent instituted divorce proceedings in April 2023,
which proceedings
are yet to be finalised. The first respondent
claims therein for the division of the parties’ joint estate.
5.
The applicant sought urgent interdictory relief pending the
finalisation of the divorce proceedings to interdict and restrain the
respondents from utilizing an amount equal to 50% of the
nett
proceeds of the sale of Farm Jebeko and to pay the amount equal to 50
% of the nett proceeds into the applicant or the first
respondent’s
attorneys’ trust account.
6.
The applicant contended that the first respondent is intent
on
frustrating her claim or diminishing the value of her claim in the
divorce action. She further submitted that his refusal
to
account to her regarding the sale of livestock; his spending of the
joint funds and his failure to disclose details regarding
the sale of
the farms Jebeko and Gamuip, is indicative of his intent to frustrate
her claim or at the very least, to significantly
diminish the value
of her claim. It is the applicant’s case that the first
respondent will alienate and dissipate her
share of the joint
estate. It is also her case that if the proceeds of the sale
are not preserved, the court awarding her
rightful share of the joint
estate might prove to be an exercise in futility.
7.
The first respondent avers that the applicant has failed to
provide
evidence to the effect of him either selling or squandering the
communal assets or having the intention to do so.
He further
contended that farm Jebeko is an asset belonging to the second
respondent and that the second respondent is at liberty
to deal with
its assets as it deems fit. It is the first respondent’s
case that the proceeds from the sale of the Jebeko
Farm will be
utilised to increase the value of the estate and therefore the
applicant cannot suffer any prejudice if the relief
is not granted.
8.
The first respondent further contended that
if the relief sought is
granted, it will prejudice the communal estate in that the entities
will be unable to fulfil their respective
contractual obligations
.
He further contended that
the applicant
has approached the Court to effectively stay the divorce proceedings.
That the relief sought (interim interdict) has
a final effect and is
not interim in nature because the first respondent has lent and
advanced the proceeds of the sale of the
farm to entities owned by
the first respondent to purchase other valuable properties, so ran
the argument.
9.
I granted the order in favour of the applicant
and provided my reasons thereafter. On 28 February 2024, the first
and second respondents
lodged an application for leave to appeal the
order which I granted on 23 February 2024.
CONTEMPT
APPLICATION
10.
This application was launched on 15 March 2024.
The first and second respondents have opposed this application. The
third respondent
has withdrawn its opposition to the application and
has complied with the order granted on 23 February 2024 in so far as
it is
concerned, thus the applicant no longer seeks any relief
against it.
Applicant’s
Arguments
11.
It is the applicant’s submission that the first and second
respondents have wilfully and negligently failed to comply with the
Court order by failing to comply with paragraph 2.2 of the
order
i.e., they have failed to pay, or cause to be paid, 50% of the nett
proceeds of the sale of Jebeko into the trust account
of Cluver
Markotter Inc., alternatively CJ Willemse & Babinszky Attorneys
and neither have they accounted for any funds that
have been utilised
from the nett proceeds.
12.
The applicant avers that the first and second respondents have
deliberately brought the application for leave to appeal to avoid or
delay compliance with the order granted on 23 February 2024
and to
deal with the proceeds of the sale as they see fit. The order granted
on 23 February 2024 is an interlocutory order with
interim effect and
the application was launched by the applicant merely to safeguard her
interests in regards to her half of the
joint estate which will be
decided in due course. Therefore, the applicant seeks that the first
and second respondents be held
in contempt of the court, be directed
to comply with the order alternatively
the
interdict granted on 23 February 2024 be put into immediate
effect pending any appeal proceedings in respect of the said order.
Respondents’
Arguments
13.
The main
contention of the respondents’ opposition is that the order
granted on 23 February 2024 has final effect, as a result,
the
respondents have filed an application for leave to appeal the order.
The respondents submit that the material issue to be decided
herein
is ‘
whether
a party can be in contempt of court order that has been suspended in
terms of section 18(1) of the Act
[1]
,
pending the finalisation of the appeal process’.
14.
The respondents argue that the order is not immediately executable
as
it is the subject of an application for leave to appeal. They further
contend that they are not bound by the order and that
the second
respondent is thus entitled to carry on as if the order does not
exist. The respondents submit that they hold a
bona fide
view
that the order has a final effect and that this view is demonstrated
and substantiated by the alternative relief sought by
the applicant.
15.
The respondents further aver that the current application for
them to
be held in contempt of the court and
inter alia
be directed to
comply with the impugned order cannot succeed as the applicant has
failed to demonstrate any exceptional circumstances
for the Court to
grant such an order and irreparable harm that the applicant may
suffer if the Court does not order same. The second
respondent has
made a formal tender to the applicant, by way of security which is
secured by the registration of a covering mortgage
bond in favour of
the applicant. The respondents allege that the proceeds of the sale
have been utilised in a commercial endeavour
intended to increase the
value of the first respondent’s estate, which would in return
also have a positive financial benefit
for the applicant. Therefore,
the respondents submit that its non-compliance with the order is not
wilful or contemptuous and that
the application for contempt is
mala
fide
, thus the court should dismiss the application with costs on
an attorney and client scale.
16.
The issues I had to determine were:
16.1
Whether the application is urgent;
16.2
whether the applicant had made out a
case for the contempt; and
16.3
whether the order is susceptible to the
provisions of section 18(1), read with section 18(3) of the Superior
Courts Act?
URGENCY
17.
The applicant avers that the application is
urgent, in that the applicant must take expeditious steps to secure
her half share of
the nett proceeds of the sale of Jebeko, otherwise
the respondents will continue to utilise the funds as they deem fit.
18.
The respondents submit that
the application is not urgent, the application is an abuse of process
and in the absence of valid grounds
to justify urgency, the court
strike the matter of the roll with an appropriate punitive costs
order; and or alternatively, dismiss
the application.
19.
It
is trite that an ongoing contempt of a court order, by its very
nature, is urgent. In
Protea
Holdings Ltd v Wriwt and Another
[2]
,
Nestadt
J held that as ‘
one
of the objects of contempt proceedings is by punishing the guilty
party to compel performance of the order, it seems to me that
the
element or urgency would be satisfied if in fact it was shown that
respondents were continuing to disregard the order of 3
August 1977.
If this be so, the applicant is entitled, as a matter of urgency, to
attempt to get the respondents to desist by the
penalty referred to
being imposed’
.
20.
In the
matter
Victoria
Park Ratepayers’ Association v Greyvenouw CC and Others
[3]
it was held that “
it
is not only the object of punishing a respondent to compel him or her
to obey an order that renders contempt proceedings urgent:
the public
interest in the administration of justice and the vindication of the
Constitution also render the ongoing failure or
refusal to obey an
order a matter of urgency.
”
21.
The applicant avers that on 27 February 2024,
her attorneys addressed correspondence to the conveyors Thorpe &
Hands Inc. to
advise that in terms of the Court order, 50% of the
funds held by it was to be paid into their trust account, the
conveyors were
also advised that the respondents have launched an
application for leave to appeal the order and that such application
does not
suspend the operation of the order in that it is interim. A
similar letter was addressed to Arajulo Attorneys. The first
respondents’
attorneys were aware of the letters sent to the
parties and in response to the letters, they addressed a letter to
the applicant’s
attorneys, wherein they advised, that the
application for leave to appeal does suspend the operation of the
order and that the
impugned order had the effect of a final judgment.
The Respondents further made an interim proposal to the applicant and
tendered
to register a mortgage bond in favour of the applicant.
22.
On 1 March 2024, the applicant’s
attorneys advised the respondents’ attorney that its actions
are circumventing the
order and reiterated that the relief granted is
not final in nature but interim. Further, the respondents were
advised to comply
with the order or confirm the steps taken to comply
with the order failing which the applicant would institute contempt
proceedings.
According to the applicant, the first and second
respondent’s attorneys advised that it would revert to the
applicant on
11 March 2024 and requested that the matter stand over
until then, but no response was received on 11 March 2024. The
applicant
alleges that it had no option but to approach the Court on
the shortened time periods to enforce compliance with the order, and
that in the interim, the applicant has no control over how the first
and second respondents deal with her half share of the nett
proceeds.
23.
It is evident that the applicant sought
compliance with the order from the respondents in that it was of the
view that the order
was interim and thus not appealable, upon the
respondents having failed to comply with the order or advise upon the
steps it would
take to comply with the order, the applicant launched
this application. I take the view that the respondents’
contempt in
the circumstances is ongoing and thus the applicant was
entitled to launch these proceedings on an urgent basis.
CONTEMPT
24.
In the
matter
Fakie
NO v CCII Systems (Pty) Ltd
[4]
,
the
Supreme Court of Appeal dealt with the test and requirements to be
met for a committal in respect of contempt of court,
at paragraph 9
it held:
“
The
test for when disobedience of a civil order constitutes contempt has
come to be stated as whether the breach was committed ‘deliberately
and mala fide’. A deliberate disregard is not enough,
since the non-complier may genuinely, albeit mistakenly, believe
him-
or herself entitled to act in the way claimed to constitute the
contempt. In such a case good faith avoids the infraction. Even
a refusal to comply that is objectively unreasonable may be bona fide
(though unreasonableness could evidence lack of good faith).”
25.
To
succeed in establishing that the respondents are guilty of contempt
of a court order, the applicant must establish the
following:
(a)
that
the order was made against the respondents;
(b)
the order was served on the respondents or that the respondents had
knowledge or information about the order; and that
(c)
the
respondents failed to comply with the order.
[5]
It is further trite that once the above requirements have been
satisfied, wilfulness and
malafide
on
the part of the respondent is presumed. The evidentiary burden is
then on the respondent to establish reasonable doubt.
Failure to
discharge this burden by the respondent will result in him or her
being found guilty of contempt of court.
[6]
26.
It
is common cause that the court order exists; the first and second
respondents have knowledge of the court order; and that the
first and
second respondents have not complied with the express terms of the
order.
The respondents’ dispute that their
conduct is wilful and
malafide
. The respondents submit that it
is impossible to be in contempt of an order which has been suspended
and which is inoperative in
that the order granted falls within the
purview of section 18 (1) of the Superior Courts Act. The respondents
aver that they hold
a strong and
bona fide
view that the order
has the effect of a final judgment, therefore, they cannot be in
wilful disobedience. The respondents further
submits that there are
very good prospects of success in appealing the order and that the
prospects of being unsuccessful on appeal
are therefore slim. I am
unpersuaded that this defence excuses the respondents from complying
with the order.
27.
It
is trite that all orders
of court,
whether
correctly or incorrectly granted, have to be obeyed unless they are
properly set aside.
[7]
28.
The correspondence sent by the respondents’
attorney
wherein
it made an interim proposal to the applicant and tendered to register
a mortgage bond in favour of the applicant failed
to assist in
resolving the respondents’ non-compliance with the order. This
does not demonstrate a
bona fide
attempt by the respondents to secure 50% profit of the net proceeds
of the sale of Jebeko.
The respondents
conduct is indicative of the fact that the respondents are intent on
subverting the order granted on 23 February
2024 and frustrating the
applicant’s claim.
29.
It
has been said authoritatively that: “
Contempt
of court is not merely a means by which a frustrated successful
litigant is able to force his or her opponent to obey a
court order.
Whenever a litigant fails or refuses to obey a court order, he or she
thereby undermines the Constitution. That,
in turn, means that
the court called upon to commit such a litigant for his or her
contempt is not only dealing with the individual
interest of the
frustrated successful litigant but also, as importantly, acting as
guardian of the public interest
.”
[8]
If
a coercive order will be fruitless, a punitive order aimed at
punishing the contemnor by imposing a sentence which is
unavoidable
will be the only appropriate remedy.
30.
The
Supreme Court of Appeal in
Fakie
held
that:
‘
[i]n
the hands of a private party, the application for committal for
contempt is a peculiar amalgam, for it is a civil proceeding
that
invokes a criminal sanction or its threat. And while the litigant
seeking enforcement has a manifest private interest in securing
compliance, the court grants enforcement also because of the broader
public interest in obedience to its orders, since disregard
sullies
the authority of the courts and detracts from the rule of law’
[9]
.
31.
In
Meadow
Glen Home Owners Association v City of Tshwane Metropolitan
Municipality
[10]
it has held, “
...[a]lthough
some punitive element is involved, the main objectives of contempt
proceedings are to vindicate the authority of court
and coerce
litigants into complying with court orders It is indeed the accepted
practice in contempt matters to seek compliance,
using punishment as
a means of coercing same
.
32.
I am of the view that the only way to ensure
that the respondents comply with the order and to stop their
contemptuous behaviour
is to coerce the respondents.
33.
The respondents have failed to advance evidence
that established a reasonable doubt that their non-compliance with
the order was
wilful and
mala
fide
.
SECTION
18
OF THE
SUPERIOR COURTS ACT 10 OF 2013
.
34.
Section
18
of
the
Superior
Courts Act provides
as
follows:
18.
Suspension of decision pending appeal-
(1) Subject
to
subsections (2)
and
(3)
, and unless
the court under exceptional circumstances orders otherwise, the
operation and execution of a decision which is the
subject of an
application for leave to appeal or of an appeal, is suspended pending
the decision of the application or appeal.
(2) Subject
to
subsection (3)
, unless the court under exceptional
circumstances orders otherwise, the operation and execution of a
decision that is an interlocutory
order not having the effect of a
final judgment, which is the subject of an application for leave to
appeal or of an appeal, is
not suspended pending the decision of the
application or appeal.
(3) A court
may only order otherwise as contemplated in
subsection
(1)
or
(2)
, if the party who applied to the court
to order otherwise, in addition proves on a balance of probabilities
that he or she will
suffer irreparable harm if the court does not so
order and that the other party will not suffer irreparable harm if
the court so
orders.
35.
It is an established rule of practice in our
Courts that generally, the execution of a judgment is automatically
suspended upon
the noting of an appeal, with the result that, pending
the appeal, the judgment cannot be carried out. No effect can be
given thereto,
except with the leave of the Court which granted the
judgment. To obtain such leave, the party in whose favour the
judgment was
given must make a special application in terms of
section 18
of the
Superior Courts Act.
36.
In
the main judgment, the
nature
of the interim anti-dissipatory interdict
pendente
lite
was comprehensively discussed.
I concluded then, and reiterate that conclusion here, that the
interdict granted is interim and
interlocutory, and does not have
final effect. This conclusion brings into operation,
section 18(2)
of
the Act for purposes of the present case. The effect thereof will be
that, the
Superior Courts Act does
not suspend the operation of an
interlocutory order, not having the effect of a final judgment,
pending the outcome of the application
for leave or the appeal
itself. Thus if the impugned order falls squarely within the
ambit of
s18(2)
of the Act, then the Court may not have to trigger
s18(1)
and
18
(3) of the Act. The nature of the order itself is
such that it cannot be subverted or suspended by a pending appeal or
application
for leave to appeal.
37.
In
Ntlemeza v
Helen Suzman Foundation and another
[2017] JOL 38075
(SCA),
it
was held that:
“
Where
a judgment is final in effect, as contemplated in
section 18(1)
, the
default position is that the operation and execution of the principal
order is suspended pending the decision of the application
for leave
to appeal or appeal. In terms of
section 18(2)
, the default position
in respect of an interlocutory order that does not have the effect of
a final judgment is that the principal
order is not suspended pending
the decision of the application for leave to appeal or appeal. Both
sections empower a court, assuming
the presence of
certain jurisdictional facts, to depart from the default
position.”
38.
The
grant of an interdict
pendente
lite
,
though it may cause great, and indeed irreparable prejudice to the
respondent, it clearly does not dispose of any issue or any
portion
of an issue in the main action, thus an order is held to be
interlocutory in effect as well as in form
[11]
.
39.
The order granted on 23
February 2024 does not dispose of the applicant’s claims and is
clearly interim in nature and thus
not appealable, be that as it may,
to settle this point between the parties, I intend to make an order
to the effect that the order
is not suspended.
The
applicant will be severely prejudiced by the respondents using the
application for leave to appeal as a shield to justify its
non-compliance with the order.
40.
The order granted on 23
February 2024 falls squarely within the purview of
Section 18(2)
of
the
Superior Courts Act, thus
its
operation and
execution is not suspended pending the decision on the application
for leave to appeal or the appeal itself.
COSTS
41.
The
respondents’ conduct in this matter justifies a punitive costs
order against them as a mark of this Court’s displeasure
at
their conduct and resolute refusal to abide by the order. In the
circumstances, I am inclined to grant costs in favour of the
applicant on an attorney and client scale.
I
make the following order:
1.
The first and second respondents are
declared in contempt of the order granted by this Court on 23
February 2024.
2.
The first respondent, due to his contempt
be committed to prison for a period of 30 days.
3.
The second respondent due to its contempt
is sentenced to pay a fine in an amount of R100 000.00.
4.
Orders 2 and 3 above are suspended for a
period of
2 years
on
condition that the first and second respondent comply in every
respect with their obligations in terms of the order granted by
this
Court on 23 February 2024 and that they do so within five days from
the date of this order and more specifically that:
4.1. the first and
second respondent pay or cause to be paid, 50% of the nett proceeds
of the sale of Jebeko into the trust account
of Cluver Markotter Inc;
4.2. In the event that
the First and/or Second Respondents have already utilized any part of
the nett proceeds of the said sale,
he/it forthwith pay 50% of the
amount so utilized into the trust account of Cluver Markotter Inc;
5.
The operation and
execution of the order granted by this Court on 23 February 2024
shall not be suspended pending the
finalisation of the application for leave to appeal and subsequent
applications/petitions for
leave to appeal of that order.
6.
The first and second respondents are
ordered to pay the costs jointly and severally from each other, the
one paying the other to
be absolved
pro
tanto
on an attorney and client scale.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the Applicant:
Adv
A.G. Van Tonder
On
the instruction of:
Cluver
Markotter Inc.
c/o
Engelsman Magabane Inc.
On
behalf of the 1
st
and 2
nd
Respondents:
Adv
MMW Van Zyl SC
On
the instruction of:
CJ
Willemse & Babinszky Attorneys
c/o
Roux Welgemoed Du Plooy Att.
[1]
Superior
Courts Act 10 of 2013
.
[2]
1978
(3) SA 865
(W),
868H
[3]
[2004]
3 All SA 623
(SE) (11 April 2003) at para 27.
[4]
Fakie
NO v CCII Systems (Pty) Ltd
(653/04)
2006 (4) SA 326 (SCA).
[5]
Ibid
at
para 22
[6]
Ibid
at
para 41-42
[7]
Secretary,
Judicial Commission of Inquiry into Allegations of State Capture v
Zuma and Others
2021 (5) SA 327 (CC)
at para 59.
[8]
Victoria
Park Ratepayers’ Association
,
above n 3, at para 23.
[9]
Ibid
at
para 8
[10]
[2014] ZASCA 209
;
2015 (2) SA 413
(SCA) at para 16
[11]
Herbstein
and Van Winsen,
The
Civil Practice of the High Courts
and
the Supreme Court of Appeal of South Africa
5
ed (Juta & Co Ltd, Cape Town 2009) at 1209.